- The Washington Times - Sunday, July 30, 2000

Part Four of Five

Lawyers have a reputation as the only professionals who can't be tamed, inevitably outrunning their accusers who flood disciplinary boards with complaints of wrongdoing.
Indeed, only a minute percentage of American lawyers who are charged formally after a complaint eventually get brought to ground and lose their licenses under each state's supersecret disciplinary process.
And a few of those even manage to exploit gaps in a patchwork, state-by-state regulatory network to practice their brand of law elsewhere.
No wonder self-described legal reformers push for a nationwide system that would make it easier to keep tabs on and punish errant lawyers. Some go so far as to say average Joes, not fellow practitioners, should decide in open hearings whether a lawyer's actions warrant revoking his license.
"If a jury made up of non-lawyers is good enough to decide a murder case or a million-dollar lawsuit, it's certainly capable of determining whether a lawyer has cheated a client," says District of Columbia lawyer James C. Turner, executive director of the legal-reform group HALT.
Of a total of 118,891 complaints to state disciplinary boards in one year, formal charges were initiated against only 2,504 lawyers, according to the American Bar Association's latest tally.
The ABA receives 3,000 to 3,500 notices of disciplinary action each year, including multiple actions against individual lawyers. The Supreme Court disbars about 125 lawyers each year, almost always after learning of state or federal court action.
Most lawyers guilty of wrongdoing, even serious felonies, usually escape with suspensions or even verbal sanctions and restitution of some sort.
Widespread resistance within the legal profession prevents a more seamless system of discipline for the bad apples among the nation's 1.2 million lawyers with active licenses.
The opposition stems in part from the independence of state bar associations and the belief in many states that reciprocal licensing would follow. The latter change could require all 50 states and the District to recognize law licenses in much the same way a driver's license is valid nationwide.
The District, Virginia and 25 other states offer some form of reciprocal licensing without re-examination, according to the National Conference of Bar Examiners. The other 24 Maryland among them require even experienced lawyers to pass the local bar exam before they can open shop.
University of Pennsylvania law professor Geoffrey C. Hazard Jr. crusades for creating a system of universal identification numbers for lawyers and allowing them to practice across state lines in some situations.
"There are a few really bad guys who lie about their names or where they were admitted," says Mr. Hazard, director emeritus of the American Law Institute. "Those are terrible, terrible guys."

Holes in the 'system'

In a detailed examination of lawyer discipline and accountability, The Washington Times found some troubling discrepancies. Among them:
The states, each of which regulates lawyers in its own way, have not adopted a method for assigning an official national identification number for each lawyer. This despite an announcement in the early 1990s that the ABA began using numbers assigned by Martindale-Hubbell, the directory service that has rated lawyers' ethics and abilities for a century.
Even Martindale-Hubbell's system which the ABA calls the nation's most authoritative because it lists every licensed lawyer posts ratings of "very high to pre-eminent" for ethical standards and legal ability of some lawyers who are disbarred, under suspension or in prison. The public listing includes the names of many unrated lawyers without warning that they actually are suspended or disbarred.
The ABA does not interrupt a lawyer's membership or notify Martindale-Hubbell when a lawyer is suspended for less than six months.
The ABA in conjunction with West Group (publisher of Westlaw legal directories and lawbooks) operates a "voluntary," computerized National Lawyer Regulatory Data Bank using reports from cooperating states. It charges the public $10 for each name checked. But an ABA official says the database contains few specifics on offense or punishment and reflects errors found in Martindale-Hubbell, from which it derives data.
Though Arizona and some other states post every disciplinary action on a Web site, no state is required to inform any other when it disciplines a lawyer even though tens of thousands are licensed in more than one state.
Court documents on expulsion or suspension of lawyers in the District, Maryland and eight other states supply only the accused lawyer's last name, making it difficult to identify the punished offenders. (The other states: Colorado, Delaware, Maine, Massachusetts, Mississippi, Missouri, New Jersey and Pennsylvania.)

Behind closed doors

Legal disciplinarians who run effective state systems say they often rely on an "old-boy network" among bar counsel to get out the word about a bad apple.
"Generally speaking, I believe the disciplinary system works quite well. Complaints are handled timely and those that should be disciplined receive it. We're the prosecutors, we're not the fact-finders. Discipline is imposed by the courts," says J. Scott Davis, bar counsel for the Maine Board of Overseers of the Bar and president of the National Organization of Bar Counsel (NOBC).
Defenders of the current arrangement see no reason to explore mandatory, computerized tracking with a unique numbering system for lawyers, similar to the one imposed on physicians.
Critics see more than enough reason for change.
"Everybody divides up their disciplinary cases, and how they report them, in different and arcane ways. Even doing comparisons from state to state is really hard," says Mr. Turner, the former congressional aide who heads HALT (an acronym for the advocacy group's original name, Help Abolish Legal Tyranny).
HALT's Legal Accountability Project advocates having laymen, not lawyers, run the state disciplinary boards that now function behind closed doors. Some states already do this, as in Arkansas where the seven-member disciplinary committee that took up President Clinton's disbarment case include two non-lawyers.
The proceedings should be as open as the courts are to the public and press, Mr. Turner says.

Refusing to be counted

ABA spokeswoman Nancy Slonim says the 400,000-member organization supports public access to disciplinary proceedings, but only after a complaint is accepted and formal charges are filed.
The majority of complaints, she says, are disposed of by dismissal or, "in cases of minor misconduct," by private sanction with the ABA's official support.
ABA policy notes that support for private decisions comports with the group's 14-year stance that the primary purpose of disciplinary proceedings "is to protect the public." How so? Because infractions punished in private pose "little or no injury to a client, the public, the legal system."
Private sanctions were issued in 2,634 cases in the ABA's latest survey, a 1998 study covering the year 1996.Eleven states totally shunned participation in the survey, done by the ABA's standing committee on professional discipline. The no-shows: Arkansas, Idaho, Iowa, Louisiana, Mississippi, Montana, Nevada, New Hampshire, Oklahoma and South Dakota. Vermont also didn't contribute, but the ABA cribbed data from a state report in the public domain.
Five of the 11 no-shows also were among eight states that opted out in 1995. No follow-up surveys have been done.
"Idaho hasn't been heard from since 1994," says Miss Slonim, a lawyer who directs the ABA's media services. Officials in Boise did not comment on why they opted out.
The 40 states covered by the ABA survey included the largest ones. The results showed 542 lawyers disbarred and 1,324 suspended out of 118,891 complaints filed, for a rate of 1.57 percent removed from practice even briefly. There were 803 disbarments reported a year earlier, in 1995.

On the receiving end

Statistically, the District is the toughest jurisdiction. The city's bar got 1,513 complaints, leading it to disbar 17 lawyers and suspend 23 for a rate of 2.64 percent. That rate is dramatic, considering most of the 43,327 lawyers licensed here do not actually practice in the city.
In Maryland, with 24,805 licensed lawyers, 2,111 complaints in a year led to 12 disbarments and 22 suspensions, a rate of 1.6 percent whose practice was interrupted or ended.
Virginia disbarred four of its 20,713 lawyers and suspended 16 after receiving 2,677 complaints during the year, for a rate of 0.75 percent among the nation's lowest.
"Half of the complaints involve things like not returning calls or neglecting filing deadlines. Most of the time the charge is not true," says James Grogan, counsel for the Illinois Attorney Registration and Disciplinary Commission, which is among agencies criticized by HALT.
"The big frustration for the person at the receiving end is not knowing what's going on," Mr. Grogan says, explaining why in his state only 150 formal charges were lodged out of 6,801 complaints. Illinois has 68,819 licensed lawyers.
He says the frustration occurs even though some 500 complaints a year are filed not by dissatisfied clients but by fellow lawyers required to turn in colleagues for professional misconduct, theft or misuse of client funds. One lawyer who says some of those claims are unfounded could not explain why the accusers were not then disciplined.

Slipping through the cracks

States vary widely in punishing errant lawyers. Virtually none permits lifetime disbarment. The typical law allows reinstatement hearings after specified intervals, usually five years.
Marvin Mitchelson, divorce lawyer to the stars, was readmitted May 15 to the California Bar. Mr. Mitchelson, 72, had been suspended for seven years, two of which he spent in prison for tax evasion.
State Bar Court Judge Eugene Brott overlooked the fact that Mr. Mitchelson has yet to pay $2.25 million in back taxes. He said the man who invented the legal concept of palimony now seeks only "a pain-free, simple life."
Washington state disbarred five of its 20,062 lawyers and suspended seven as the result of 2,364 complaints filed in 1996, a removal rate of 0.5 percent. Michigan, with 3,941 complaints against 31,738 licensed lawyers, disbarred 28 and suspended 70 for a rate of 2.49 percent.
As rare as disbarment may be, lawyers consider it a professional death sentence.
"I am mindful every day that a significant part of my being is missing, like my whole inner being was carved out of me," says Bruce C. Bereano, who in 21 years as perhaps the most influential lobbyist at the Maryland General Assembly also became the first one known to earn $1 million a year in Annapolis.
But "death sentence" or no, Mr. Bereano's career in the State House corridors resumed after he served time for defrauding four clients and was disbarred.
Those who looked up Mr. Bereano's name on the Martindale-Hubbell listings months after his disbarment got a different picture, however that of a man licensed to practice in Maryland and the District. He and his law office remained listed; his rating was "BV" the second-highest ranking indicating "high to very high legal ability and very high ethical standards as established by confidential opinions from members of the bar."
The ABA data bank showed five actions against Mr. Bereano after the inquiry by The Times, from his initial suspension through permanent disbarment. The data would be clear to anyone requesting it, but there was no explanation why it wasn't shared with Martindale-Hubbell.

How the data bank works

The ABA's data bank gets about 3,000 disciplinary notices a year and responds to some 750 inquiries, Miss Slonim says. About 30 percent of the requests are from disciplinary boards, the rest from members of the public at $10 per name.
The system contains 65,000 records, of which six are about Mr. Bereano. A separate file is entered each time action is taken against a lawyer, Miss Slonim says.
There is no foolproof system to prevent disciplined lawyers from opening shop elsewhere.
Miss Slonim says that, when state boards voluntarily report discipline to the National Lawyer Regulatory Data Bank, the ABA notifies only states where the lawyer is known to have been licensed.
"We send out a monthly notice by mail to any other jurisdictions in which the lawyer has a license that we are aware of," the ABA spokeswoman says. "If we don't have an up-to-date list somebody doesn't get it, but states can check whenever they want to. Some cross-check every new admission to the bar, some do not."
A "handful" of states, Miss Slonim says, consistently don't participate in updating the data base. A few file weekly reports, some report once a year. Many report cases without details of offense or punishment, she says.
Miss Slonim insists the system works well because it uses universal lawyer-identification numbers. But others deeply involved in lawyer discipline say efforts to institute such IDs fell by the wayside years ago.
"My recollection is it didn't fly," says Mr. Davis, manager of Maine's disciplinary system since 1984 as well as head of NOBC, which includes those who run the states' oversight agencies. "If I have one, nobody's told me what it is."
"There is no such thing as a universal [ID] number," Mr. Grogan says, citing balkanization of oversight by each state's highest court. "It would be very easy to do with computers, but I see no movement to create a universal registration number as of this date."

'Not a perfect system'

Carol Cooper, who directs Martindale-Hubbell's on-line lawyer listings, expresses surprise that The Times turned up so many names of disbarred or suspended lawyers there. She says they usually are removed "within days" of official action. "It's not a perfect system," she concedes.
The Times checked the list for entries on 61 lawyers disbarred or suspended in the past year for criminal convictions. Twelve of 34 disbarred lawyers were listed as practicing, including Mr. Bereano.
Among others listed was Setiri S. Sotiriou, 73, of Long Island City, N.Y., who received the high "BV" rating although he was disbarred in July 1999 after being sentenced to 27 months in federal prison for extortion.
Eleven suspended lawyers were listed as active, including three with the top "AV" rating.
"I'm sure there are pockets with problems," Miss Cooper says.
(Miss Cooper requested during an interview that she not be identified or quoted contingent upon her promise to respond formally. Instead the listing director informed the ABA of inquiries by The Times, updated the questioned files and did not keep her commitment to reply.)
Miss Slonim says the ABA never sent Martindale-Hubbell a notice about Mr. Bereano, though one normally goes out for any lawyer disbarred or suspended for six months or more.
"I have been advised that Mr. Bereano's continued appearance is an aberration," Miss Slonim says.
She declines comment on why other penalized lawyers flagged by The Times also were listed in good standing.

Bucking tradition

Mr. Grogan does credit the ABA database with reducing the number of unscrupulous lawyers who get away with hopping states.
"A couple of years ago it was far more frustrating," the Illinois lawyer-discipline overseer says. "The database has gotten way better."
Mr. Hazard, the University of Pennsylvania law professor, doubts that a universal numbering system will be created despite "big holes" in the ABA data bank.
"The chances of Congress enacting that are very remote," he says. "The tradition of state governance of the legal profession is very strong."
Huge federal payments to physicians heightened government interest in weeding out offending doctors and led to a national database in the 1980s, he notes.
"The feds don't pay lawyers as they do doctors, and there is no particular interest group that wants that to happen," Mr. Hazard says.

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Part III: Law partners share wealth from huge judgements

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